Citation Nr: 1325319 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-30 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right eye condition as due to trauma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. In September 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO located in St. Petersburg, Florida. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A transcript of the proceeding has been associated with the claims file. In March 2012, the Board remanded the claim for residuals of right eye injury to the RO (via the Appeals Management Center (AMC)) to provide the Veteran with a VA examination in order to determine the nature and etiology of the claimed disorder. The record now contains the report of a March 2013 VA examination. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that the claims file contains a September 2011 Statement of the Case on the issues of entitlement to service connection for anxiety disorder as well as residuals of cold injuries in the upper and lower extremities. A review of the Veterans Appeals Control and Locator System (VACOLS) shows that a VA Form 9 was received in October 2011; however, this document has not been associated with the paper claims file or the Virtual VA claims folder, and VACOLS also indicates that the Veteran's appeal as to these issues has not been certified to the Board. Thus, it appears that these issues continue to undergo additional developmental at the Agency of Original Jurisdiction (AOJ) and are not yet before the Board for appellate consideration. FINDING OF FACT After resolving any doubt in the Veteran's favor, the evidence of record is at least in equipoise that his current right eye disorder, identified as angle recession, is the result of an in-service eye trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for a right eye disorder, identified as angle recession, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Since the full benefit requested for entitlement to service connection for a right eye disorder is being granted in this decision, any lapse in duties to notify or assist have not prejudiced the Veteran's claim. 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran claims that he incurred a right eye condition as a result of in-service trauma. See Statements dated in February 2004 and April 2007. In the alternative, the Veteran also contends that he has a right eye condition secondary to his nasal trauma and rhino-sinusitis. See Board Hearing Transcript, September 2011 at 10. Specifically, the Veteran reports that in service in January 1974, while serving at Camp Casey in Korea, a fellow soldier punched him in the nose and right eye, and that as a result, he has experienced right eye problems, including seeing floaters and experiencing visual impairment, cold sensitivity, pain, tremors (e.g., jerking), seeing a white sort of film over his eye, photo sensitivity, and drainage. See Statements, April 2010 (two); Board Hearing Transcripts, June 2003 at 9-10 and 14, September 2011 at 3-6; DRO Hearing Transcript at 1-3 and 6. The Veteran testified that his right eye was black or blue for approximately several months after the in-service assault. See Board Hearing Transcript, September 2011 at 5. The Veteran's service treatment records reflect that he was treated for fuel spilling into his eyes, hay fever, and conjunctivitis, and that he reported experiencing pressure behind his eyes in connection with diagnosis of possible bronchitis, rule-out sinusitis. See Service Treatment Records, March 1974 (pressure behind eyes), April 1974 (two; allergic conjunctivitis), August 1974 (allergic conjunctivitis), June 1974 (eyes watering), October 1974 (spilled fuel in eyes). None of the available service treatment records corroborates the Veteran's reports that he sustained a direct trauma to the right eye while he was stationed in Korea. Although the available service treatment records do not reflect treatment for a right eye trauma while the Veteran was stationed in Korea, the Veteran has consistently and credibly reported that he sustained a trauma to his right eye after he was punched by a fellow serviceman. Although the Veteran is unable to remember being hit in the right eye, because he was intoxicated at the time, he has testified that upon waking, he had a splint and bandage over this noise and his right eye was black and swollen shut. The Board also acknowledges an October 2000 lay statement from the Veteran's mother in which she reports that the Veteran's right eye was bruised and black when he returned home from Korea. It is noted that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay person may provide eyewitness account of medical symptoms). In addition, the Board notes that the Veteran is already service-connected for residuals of nasal trauma, and while there is no record of any in-service assault in the Veteran's service records, the Board acknowledges that VA has essentially conceded that an assault occurred in service. See Rating Decision, September 2011. Given the Veteran's consistent and credible testimony, as well as VA's previous concession of an in-service nasal trauma, the Board concedes that the Veteran sustained a trauma to his right eye at the same time. The remaining questions on appeal are (1) whether the Veteran has a current diagnosed eye disability, and (2) whether the evidence of record is at least in equipoise that the diagnosed disorder is etiologically related to his in-service right eye trauma. VA treatment records dated in January 1991 and January 1998 reflect a diagnosis of conjunctivitis and complaints of a film over his eye. Recent VA medical records show that the Veteran has been followed for diagnosed blepharospasms (see February 2010 and 2011, April 2011), benign fasciculations (February 2010), dry eye/meibomitis (February 2008, 2010, and 2011), angle recession, possible glaucoma, and trace cataracts (June 2007, August 2007, April 2008). Pursuant to the Board's March 2012 remand directives, the Veteran was afforded a VA eye examination in March 2012. In this examination report, the VA examiner noted that the Veteran reported that he was assaulted while on active duty in Korea in 1974 and he reports having a sore right eye since then. The examiner also noted that a review of the Veteran's VA medical records and service treatment records. Based on clinical evaluation, the VA examiner noted the Veteran had current diagnoses of right eye angle recession (suspect glaucoma greater on right than left), and bilateral dry eye. Clinical evaluation also revealed evidence of bilateral cataracts, but no evidence of allergic conjunctivitis. The examiner noted that there was evidence of right eye angle recession with normal intraocular pressure and stable optic nerve cupping. The examiner noted that the Veteran was a glaucoma suspect due to the finding of angle recession in the right eye and slightly asymmetric cup to disc ratio, with greater in right eye than left eye, but the clinical testing at the VA eye clinic has not demonstrated findings of glaucoma in either eye. Regarding the etiology of the Veteran's claimed right eye disorder, the March 2012 VA examiner noted that he was unable to find any documentation in the Veteran's service treatment records that showed he had any complaint, diagnosis, or treatment for ocular trauma. The examiner also noted that the Veteran's military separation physical in 1975 showed uncorrected distance visual acuity to be 20/20, bilaterally, without any documentation of past ocular trauma. The VA examiner next noted that the medical records and clinical examination supported a finding of angle recession, which is often associated with past ocular trauma. The examiner cited to medical literature that supported the conclusion that blunt trauma can lead to angle recession. However, the VA examiner concluded that without any supporting evidence of ocular trauma in service, the Veteran's right eye angle recession (and bilateral dry eye) are not caused by or related to his period of service, to include any of the conditions listed in his service treatment records. Initially, the Board acknowledges that the Veteran has been diagnosed with blepharospasms, benign fasciculations, dry eyes, and cataracts, however, the evidence of record does not indicate that any of these other diagnosed eye conditions are related to the Veteran's period of service. There is no medical evidence showing that the Veteran's any of these current eye disorders had an onset during his period of service. See 38 C.F.R. § 3.303. In addition, the March 2012 VA examiner's medical opinion only weighs in support of a finding the Veteran's right angle recession is related to his period of service. The March 2012 VA examiner opined that none of the other eye conditions was related to any of the other incidents noted during the Veteran's period of service. The Board finds it pertinent that there is no contrary medical opinion of record. Moreover, the symmetrical finding of bilateral cataracts in the medical record suggests that the condition is not related to an injury that only affected the Veteran's right eye. The Veteran's assertion that these diagnosed disorders are etiologically related to his service is not competent and persuasive evidence. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (no probative weight in the absence of evidence that he or she has the expertise to render opinions about medical matters). To the extent the Veteran himself believes that any of these diagnosed eye disorders are related to his period of active service, the Board acknowledges the Court's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Jandreau, the Court held that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, notably, his current diagnosed eye disorders are disorders that are first demonstrated through the results of clinical and laboratory testing that would not be capable of lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran is not competent to address etiology in the present case. The Board now turns to the diagnosis of right eye angle recession confirmed during the March 2012 VA eye examination. The VA examiner noted that the finding of angle recession is consistent with medical history of blunt trauma to the eye. Although the March 2013 VA examiner opined that the Veteran's diagnosed right eye disorder was not related to his period of service, this opinion was premised on the lack of ocular trauma documented in the Veteran's service treatment records. As discussed above, the Board concedes that the Veteran sustained a right eye trauma in 1974 while he was stationed in Korea, despite the absence of treatment or complaints shown in the service treatment records. The VA examiner's statement essentially provides that a positive relation between the Veteran's current diagnosis of right angle recession and a history of right ocular trauma. Given the VA examiner's statement that a finding of angle recession is consistent with history of blunt ocular trauma, and the Board's concession that the Veteran sustained a right eye trauma in service, the Board finds that the March 2012 VA examiner's opinion provides sufficient medical evidence to establish service connection. There is no medical opinion to the contrary. In short, the Board resolves reasonable doubt in favor of the Veteran to find that the evidence of record is at least in equipoise that his current right eye angle recession is related to his period of service. Hence, service connection for the residuals of a right eye trauma, identified as angle recession, is warranted. See 38 C.F.R. § 3.303. ORDER Entitlement to service connection for residuals of right eye trauma is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs